On December 9, 2021, the Appellate Division decided the Monmouth County case of State v. Calvin Fair. The principal issue under N.J.S.A. 2C:12-3 was whether the terroristic threats statute was unconstitutional for criminalizing speech that was made with reckless disregard as opposed to knowingly terrorizing.
Presiding Judge Clarkson Fisher wrote for the three-judge panel in relevant part: Defendant argues N.J.S.A. 2C:12-3(a) is unconstitutionally overbroad because it proscribes speech that does not constitute a “true threat.” He argues the First Amendment requires proof that a speaker specifically intended to terrorize and subsection (a)’s reckless-disregard element is facially invalid, and the statute is overbroad, because it “permits a true threat prosecution even if a reasonable listener would not have believed that the threat would be carried out.” We agree.
The First Amendment declares that “Congress shall make no law abridging the freedom of speech.” U.S. Const. amend. I. This limitation on governmental power is made applicable to the States by the Fourteenth Amendment. Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2463 (2018). “The First Amendment generally prevents government from proscribing speech or even expressive conduct because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid.” R.A.V. v. St. Paul (1992). The Supreme Court, however, has recognized “a few limited” categories of speech which may be restricted based on their content, including defamation, obscenity, “fighting words,” incitement to imminent lawless action, and – as relevant here – true threats. Virginia v. Black, (2003).
The true threat doctrine originated in Watts v. United States, 394 U.S. 705 (1969), where the defendant was convicted under a federal statute that prohibited “knowingly and willfully making any threat to take the life of or to inflict bodily harm upon the President of the United States”; the defendant stated at a public rally that “if they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” Id. at 705-06. The Court held that the defendant’s conviction violated the First Amendment, reasoning that, in context, his statement was not a “threat” but mere political hyperbole. Id. at 708. In so ruling, the Court emphasized our “profound national commitment to the principle that debate on public issues may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials,” as well as “vituperative, abusive, and inexact” language.
The First Amendment is a check on human nature in favor of liberty. There is a natural tendency to want to silence offensive speech. However, offensive speech is what the First Amendment is designed to protect since inoffensive speech is almost never prohibited.